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An Overview Of Small Claims & Justice Courts In Texas

The following information is not offered as legal advice, but is offered as general information only. This information is not exhaustive and is provided as a community service only.  The court and its staff cannot give legal advice. It is recommended that legal advice concerning Small Claims & Justice Courts in Texas should only be requested from an attorney licensed to practice law within the State of Texas. 

FILING A SMALL CLAIMS or JUSTICE COURT SUIT:  Please read this entire Overview of Small Claims & Justice Courts in Texas before filing your suit. There are two civil forums over which the Justice of the Peace presides: Small Claims Court and Justice Court. Some types of case may be filed in either forum, while others are restricted to a certain forum. There are other similarities and differences that you should consider prior to filing suit.

THE TEXAS STATUTES

The Texas Statutes are available on-line at: http://www.statutes.legis.state.tx.us/

VENUE

In Texas, a suit should be filed in the County and Precinct where one or more Defendants reside. (CPRC 15.082). However, there are exceptions to this rule. For further information, see "Venue in Justice Court Suits."

JURISDICTION

In Texas, a Justice Court Suit is a civil suit for money damages, possession of real property, and enforcement of liens on personal property. The amount of controversy must be for no more than $10,000 or less, interest excluded.

In Texas, a Small Claims Court Suit is a civil suit for money damages only (you may not recover personal property). The amount in controversy must be for no more than $10,000 or less, interest included. For more information please read "Comparison of Justice Court and Small Claims Court" below.

DAMAGES

The amount of money you are suing for is called "damage". The amount of damage sought must be supported by evidence. A plaintiff may not reduce the amount of the underlying claim in order to maintain a suit in the Justice Court or Small Claims Court!  For example: If a Plaintiff states that the suit is for "$10,000" and the evidence shows that the damages are actually greater than $10,000, the court loses jurisdiction of the case, and the lawsuit must be dismissed and refilled in a court of competent jurisdiction. Additionally, a Plaintiff cannot tell the court that the damages are greater than $10,000, but the Plaintiff is willing to "settle for less".

PARTIES TO THE SUIT

NAME OF THE PLAINTIFF: This is the party that is instituting the suit. Only the individual(s) or company(ies) named at the top of the Petition as Plaintiff(s) may collect a Judgment in favor of the Plaintiff.

NAME OF THE DEFENDANT:

You must sue the Defendant(s) in their proper legal capacity. If you name the Defendant wrong or misspell the Defendant(s) name you may be prevented from recovery.  Be extra cautious when naming the Defendant.

As an Individual: You must sue the Defendant individually in the following two situations:

(1) The Defendant is personally responsible to you for damages he/she may have caused you, and

(2) The Defendant in an individual capacity operating a proprietorship or partnership is responsible to you for damages he/she may have caused.

As a Proprietorship or Partnership: A proprietorship or partnership is a business that is not incorporated, but has filed an "Assumed Name" with the County Clerk. For example, "John Smith, d/b/a Smith Plumbing Company." To determine whether a company or an individual has an assumed name you must contact the County Clerk’s office in the County where the company is located.

As a Corporation: If the business that has injured you is incorporated, you must contact the Texas State Comptroller’s Office at (800) 252-1386, or the Texas Secretary of State at (512) 463-5555. Ask for the name and address for service of the Registered Agent for service of the corporation (the President or Vice-President will also work). This is the person who has been authorized to receive information regarding lawsuits filed against this corporation. For example: when completing your complaint, the name of the Defendant should read "ABC Corporation, by serving John Smith, Registered Agent."

CITATION

In Texas, a Constable or Sheriff, in the County where the Defendant is located, must serve each Defendant personally. (Notably: In Texas, under certain circumstances a recognized private process server may perform service.)  Fees for service vary by County.  In Texas, the average service fee is $60.00 per Defendant, plus Court cost. If the Defendant is to be served in a County other than the Texas County where you filed your lawsuit, you will need to call the County Courthouse in the County where the Defendant will be served. Ask who serves Civil Citations for Justice Court suits in that County (usually a Constable or Sheriff) and call the appropriate office. Find out the name, address, and service fees for civil citations. It is your responsibility to insure service of your citations. If you obtain a better address for the Defendant, call the Court and the Constable or Sheriff and provide the new information as soon as possible.

NOTE: Except for citations and papers served by personal process, you must mail a copy of all papers filed with the court to all other parties to the lawsuit.

ESTIMATED COSTS OF

SMALL CLAIMS & JUSTICE COURTS IN TEXAS (2008)

Filing fees + Service fees $60.00 per Defendant (see "Citation" above)

Small Claims Filing Fees are $25.00

Justice Court Filing Fees are $25.00

(Court Clerk prefers Cash or Money Orders only for filing fees. No checks.  Credit Cards and Debit Cards are usually not accepted.)

STATING YOUR CLAIM

State the nature of your claim fully, listing specific facts and circumstances about your claim. You must itemize how you obtained the total amount of your claim if it involves more than one item.

AFTER SUIT IS FILED

SERVICE OF CITATION

In Texas, after you have filed your petition the Small Claims or Justice Court, the Court will issue and forward the Citation(s) to the Texas Constable or Sheriff’s office you have indicated for service on the Defendant(s). Although the Citation will leave the Court promptly, it can take several weeks or more for the Citation to be personally served. It is your responsibility to ensure service of your Citation. Check periodically by telephone either with the Clerk of the Court or the Constable or Sheriff’s office directly.

ANSWER

Once the Citation has been served the Defendant must file a written answer to the suit on or before the Monday next following the expiration of ten (10) days, beginning with the date of service. Take Note * Sworn accounts must have a sworn answer * and answer all Discovery (see below) If he/she fails to do so, you (Plaintiff) will be notified by the Court to appear for a "Default Hearing." You will be asked to briefly state the facts of your case and present any documentation to substantiate those damages. Most Courts prefer and in some Courts you MUST prepare a written itemization of your damages.

ADDRESSES AND ADDRESS CHANGES

Each party or the party’s attorney must provide the Clerk of the Court with written notice of the party’s name and current residence or business address. In some Courts failure to provide this information may result in a fine of not more than $50.00. The notice must be provided at the time the party files its initial pleadings with the court or not later than seven (7) days after the Clerk of the Court requests the information. If the party’s address changes during the course of a civil action, the party, or the party’s attorney must provide the clerk of the court with written notice of the party’s new address.  Information provided to the Clerk of a Court under this section is confidential and may not be disclosed to the public without the express authorization of the Court.

SERVICEMEMBERS' CIVIL RELIEF ACT (SCRA)

If the Defendant does not file an answer to the lawsuit, or does not appear in court, the Plaintiff will NOT be able to receive a "default judgment" unless the Plaintiff first files with the Court a Service members' Civil Relief Act Affidavit stating, under oath, that the Defendant is not in the military service on active duty status. A false statement in this affidavit is a violation of Federal Law! If a Plaintiff does not have personal knowledge of the Defendant's military status, the Department of Defense maintains a secure website where the Plaintiff can obtain a status record. This website requires registration of name and address, fax and telephone numbers, email address and mother's maiden name, in order to use the website. This form may be downloaded from some Court’s websites, or requested from the address below:

Department of Defense

Manpower Data Center (DMDC)

Military Verification Service

1600 Wilson Boulevard, Suite 400

Arlington, VA 22209-2593

Telephone 703-696-5790

FAX: 703-696-4156

Email Helpdesk: sscra.helpdesk@osd.pentagon.mil

REPRESENTATION

In Texas Small Claims and Justice Courts, a party may represent himself/herself regardless of whether he/she is an individual, proprietorship, or corporation. The Texas Rules of Evidence and Texas Rules of Civil Procedure are in effect in Justice Court suits, but not in Small Claim Court suits.

TRIAL PREPARATION

TRIAL

If the Defendant files a written answer in a Justice Court case, some Local Rules require that Forty Five (45) days pass before the case can be set for trial. You will receive written notice of your Court date. If you change your address or phone number please notify the Court immediately. Please arrive on time for your scheduled trial or hearing.

Parties who are not represented by attorneys should prepare carefully for trial. Failure to prepare may result in loss of the case due to failure of proof.

DISCOVERY

Discovery is a broad term used to describe many different ways of obtaining information and evidence prior to trial, to be used at trial. While discovery is common in Justice Court cases, the permission of the judge must be sought for limited discovery in Small Claims cases. Examples of discovery include:

• Interrogatories (written questions requiring sworn answers);

• Requests for Admissions (written statements requiring sworn admission or denial);

• Requests for Production (written requests to produce evidentiary items for examination by the opposing party prior to trial) less common at the Justice Court level, oral depositions of witnesses are taken before a court reporter. Most discovery documents come with directions attached. Read them carefully! Failure to respond to discovery in a timely manner may result in the loss of the case.

NO WRITTEN RECORD

The Justice of the Peace forums are not "courts of record." There is no court reporter recording witness testimony. In ALL Small Claims and Justice Courts recording devices are not permitted without the judge’s prior consent.

PROPER DRESS IS REQUIRED

In ALL Small Claims and Justice Courts proper dress is required.  All requirements pertain to both adult and juvenile males and females unless otherwise noted. Failure to comply may result in the resetting of the case to a later date, or in the extreme, contempt of court:

-- Shoes are required.

-- No sleeveless shirts

-- No shorts (women are permitted to wear dress shorts with hosiery)

-- No exposed midriffs

-- No clothing displaying offensive words or pictures (the Court retains the exclusive right to define "offensive" on an individual basis.

-- No hats (exception: religion)

-- Cleanliness. (If necessary, washrooms are available in the building)

-- Officers of the court are held to the higher standards generally recognized in Texas Courts.

INFANTS AND SMALL CHILDREN should be left with a sitter or at home in the care of a competent adult. There are no childcare facilities in the courthouse. Loud or crying children should be taken out of the courtroom.

SUBPOENAS

Witnesses: If there are witnesses who will not come to Court voluntarily, you may request that a Subpoena be prepared and served to secure their presence in Court. This should be done at least two weeks before trial in order to allow for service of the Subpoena. The Court does not guarantee that service will be obtained. Successful service of witness subpoenas is your responsibility. There is not a charge for the Court to issue a Subpoena, but there is a service fee of approximately $60.00 and a witness fee of Ten Dollars ($10.00).  Normally a Ten Dollar ($10.00) must be attached to the top of the Subpoena.

Evidentiary Subpoenas: If the Defendant or any other witness has documentation that you do not have, and that is necessary to prove your case, you may have the person who has control of the evidence subpoenaed to bring the documentation to Court. The items you want must be listed clearly and attached to the Subpoena. All of the other information mentioned above is also applicable to evidentiary subpoenas.

JURY REQUEST

If you desire a trial by jury you must pay a jury fee of Five Dollars ($5.00) at time you file your petition.  Requests for a jury trial ordinarily require the trial date to be reset. Jury trials often last several hours longer.

MOTIONS FOR CONTINUANCE

In Texas, most Small Claims and Justice Courts require all Motions for Continuance, or requests to reset the Court date, must be in writing and received by the Court no later than three (3) working days prior to your Court date. Weekends and Holidays are excluded. The Plaintiff and the Defendant are each entitled to request one reset "only for good cause," and all other reset requests must be made by agreement of both parties.

(Gov’t. Code 28.033)

WHAT HAPPENS AFTER TRIAL?

APPEAL INFORMATION

Either party has ten (10) days in which to appeal the Judge’s decision. An appeal bond must be filed with the Court on or before 4:30pm on the 10th day after the date of Judgment. Appeals filed after this date will be denied.

• Contact the Court and find out the amount of the appeal bond required for your appeal.

• Prepare a Surety Bond for the entire amount of the Appeal Bond required by the Court.

• Pay a $10.00 Transcript fee

The Small Claims or Justice Court will then prepare a Transcript of the pleadings on file in your case and send it to the County Court Clerk for the County where the initial Small Claims or Justice Court lawsuit was filed. All Court contact from this point on will be with the County Court. There will be filing fees required from the County Court, and they will contact the party who is appealing regarding payment of those fees.

MOTION FOR NEW TRIAL

Motions for New Trial must be filed in writing within five (5) days from the date of the Judgment

COLLECTION OF JUDGMENTS

If you receive a Judgment against the Defendant and the Defendant does not file a Motion for New Trial within five (5) days, does not file an Appeal within ten days, or does not pay the Judgment within ten (10) days you may seek other remedies to collect your Judgment. The Justice Court cannot assist you in collection of your Judgment. Below are listed some remedies that are available to you, and that may assist you in the collection of the Judgment.

ABSTRACT OF JUDGMENT: You may obtain an Abstract of Judgment any time after the 11th day from the date of Judgment. The cost of an original Abstract is Five Dollars ($5.00), and you may obtain them from the Small Claims or Justice Court. The Abstract may then be filed in the office of the County Clerk in any County where you think the Judgment Debtor may own real property. The Small Claim or Justice Court can also provide a short list of the surrounding County Clerk’s offices where you could file the Abstract.

WRIT OF EXECUTION: You may obtain a Writ of Execution any time after the 30th day from the date of Judgment. A Writ of Execution allows a Sheriff or Constable to try and seize certain non-exempt property from the Defendant. If property is seized, an auction will be held and the proceedings from the sale will satisfy your Judgment. The cost of a Writ of Execution varies from County to County, and you may also want to contact the Constable or Sheriff in that

County to discuss what items are considered non-exempt and may be subject to execution.

WRIT OF GARNISHMENT: A Writ of Garnishment is available 7 Days after the date of Judgment. This is a new lawsuit and is a complicated procedure. We recommend that you consult an attorney.

TURNOVER WRIT: This process requires a Court hearing. We recommend that you consult an attorney.

HOW TO PAY JUDGMENTS WHEN THE JUDGMENT HOLDER CANNOT BE FOUND

If one party to whom a judgment is owed cannot be located, it is possible to pay the judgment into the registry of the court on a showing of good faith attempts by the judgment debtor to locate the prevailing party. Once the court is satisfied that the party cannot be located, the payment can be accepted and the court can issue a release. The money is then held until claimed by the party to whom it is owed, or the money is forfeited to the State of Texas.


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